Bestbar (Vic) Pty Ltd

[2023] FWCA 2282

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bestbar (Vic) Pty Ltd

(AG2023/2325)

BESTBAR (VIC) PTY LTD SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 24 JULY 2023

Application for approval of the Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bestbar (Vic) Pty Ltd (the Employer). The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Notice of Employee Representational Rights (NERR) was not given to employees in the prescribed form required by s 174(1A) of the Act. The Employer provided submissions as to this error on 22 July 2023. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[1] (Huntsman) that this constitutes a minor technical or procedural error for the purposes of s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by this error.

Accordingly, notwithstanding the matters identified in paragraph [3] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Agreement was approved on 24 July 2023 and, in accordance with s 54, will operate from 31 July 2023. The nominal expiry date of the Agreement is 31 March 2027

COMMISSIONER

Annexure A

[1] [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the matter of Bestbar (Vic) Pty Ltd was heard. The applicant, Bestbar (Vic) Pty Ltd, sought approval for an enterprise agreement applicable to its employees in South Australia. The dispute arose from the negotiation and proposed terms of the agreement, which the applicant aimed to implement within its workforce. The legal issues before the Commission involved assessing whether the proposed agreement met the necessary standards under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement complied with the formal and substantive requirements set forth by the legislation, including whether it provided for fair and reasonable terms and conditions of employment. The applicant argued that the agreement was the product of genuine bargaining and that it fairly reflected the needs and rights of the employees. The Commission examined the agreement's provisions, the bargaining process, and the balance of interests between the parties. After careful consideration, the Commission found that the agreement met the necessary standards under the Act and approved the application for its implementation. The final orders confirmed the approval of the Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2023, effective from the date of the decision.

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